Getting ‘SLAPPed’ by big oil?

A survey crew working on behalf of Kinder Morgan in preparation for the Trans Mountain Pipeline expansion project records video of protesters on Burnaby Mountain after they forced the workers to leave in Burnaby, B.C., on Wednesday October 29, 2014.

Photograph by: DARRYL DYCK , THE CANADIAN PRESS

Speaking of freedom of expression — and given Paris, who hasn’t lately? — Alan Dutton found himself in B.C. Supreme Court Thursday fighting, he would say, for that same freedom on home ground.

It’s a David versus Goliath case. Dutton is David; Goliath is the giant multinational pipeline company Kinder Morgan. Dutton is armed with his sense of rights and freedoms honed over a lifetime’s work; Kinder Morgan is wielding a multi-million dollar civil lawsuit.

In late October, the company brought the suit against Dutton and four other defendants for, it claims, conspiring to intimidate Kinder Morgan crews attempting to survey Burnaby mountain for the proposed expansion of the Trans Mountain pipeline.

The protests on the mountain against the work, the company claimed, caused loss of revenue. It sued for $5.6 million in damages. The five defendants were targeted because they were seen as the main organizers of the protests. Dutton ran the website for BROKE — Burnaby Residents Opposing Kinder Morgan Expansion.

The other four defendants settled out of court with Kinder Morgan.

Dutton refused.

He felt there was something greater at stake here than money: Our democratic rights.

So rather than settle with Kinder Morgan — which claims that Dutton was present during one of the heated confrontations on the mountain, and which Dutton vehemently denies — Dutton and his lawyer were in B.C. Supreme Court this week with an application to get the suit dismissed.

They failed.

Dutton’s application was dismissed late Wednesday. Kinder Morgan’s suit stands, though whether the company continues to ask for damages or just court costs is an unknown.

Not that it matters to Dutton. He still plans on fighting Kinder Morgan and taking it to court.

He and his lawyer will also see if there are grounds to appeal the dismissal.

“I have no intention of settling. If there is a court proceeding that has its own momentum that I can’t stop, I have no idea what comes next,” said Dutton.

“But there is no settling with Kinder Morgan. Kinder Morgan has dragged my name through the mud.

“But the worst part of this is that when you meet the other environmental groups, they’re going to tell you, ‘We don’t know what our rights are anymore, we don’t know if we can meet anymore, we don’t know what the limits are. When are we going to be charged? How can we have any kind of security that we can meet to talk about strategy and meet to talk about stopping Kinder Morgan? How can we have these kinds of discussions when a major transnational corporation can come and sue us?’ This is a major issue. It’s not against one person. This is something that has been used against people for a very long time.

“Democracy is under attack.”

Dutton sees Kinder Morgan’s action as a SLAPP suit — a strategic lawsuit against public participation. They’re used by corporations to intimidate or silence critics and protests against them. About half the U.S. states have legislation against them, while Quebec is the only province that does. B.C. enacted anti-SLAPP legislation in 2001, but the incoming Liberal government soon took it off the books.

“By the mere fact of being part of a protest may leave you open to being subject to a massive civil suit without any evidence of a commission of a crime or commission of conspiracy or any wrongdoing whatsoever, Canadians need to understand what can happen in cases like this, and how seriously we need to take these cases.”

Dutton’s resolve comes from a career of defending rights and fighting racism. As a student at the University of Victoria, he was involved in organizing farm workers. He was executive director of the Canadian Anti-Racism Education and Research Society. He’s taken on the Ku Klux Klan and Nazi groups. He received a Mosaic human rights award from the B.C. Attorney-General for his work combating racism. He’s taught at SFU and UVic. He’s now retired but still does consulting work in the field.

“I believe the law is fundamentally flawed,” Dutton said, “when an innocent person must face a civil suit from a major corporation simply because they organized a protest. And that’s why we need anti-SLAPP legislation in this country. In B.C., we have none, and that’s why I’m facing a $5.6 million suit.”

“I will not settle. I will not settle for money, if the money is tied to a gag order. I am going to speak about SLAPP suits (because) SLAPP suits are a major issue for the anti-racist movement, for the environmental movement, for the union movement. SLAPP suits are a fundamental part of our lives. We need to have legislation against SLAPP suits to protect our fundamental rights.”